SCOTUS: No jackass exception to the First Amendment

posted at 10:55 am on March 2, 2011 by Ed Morrissey

Considering just how emotionally and politically fraught the case of Snyder v Phelps is, the Supreme Court showed a surprising level of unanimity in striking down a lawsuit against the despicable Fred Phelps cult. With only Samuel Alito dissenting, the Court dismissed a civil lawsuit for the intentional infliction of emotional distress to the family of a soldier whose funeral got picketed by the Westboro Baptist Church. The justices ruled that the lawsuit would set a precedent that would eventually erode the right to free political speech:

The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount attention-getting, anti-gay protests outside military funerals.

The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son’s funeral.

Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.

The opinion can be found here. The majority frames the question in this passage:

Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on ‘matters of public concern’ . . . is ‘at the heart of the First Amendment’s protection.’ ” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758–759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74–75 (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U. S. 138, 145 (1983) (internal quotation marks omitted).

“ ‘[N]ot all speech is of equal First Amendment importance,’ ” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. Hustler, supra, at 56 (quoting Dun & Bradstreet, supra, at 758); see Connick, supra, at 145–147. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import. Dun & Bradstreet, supra, at 760 (internal quotation marks omitted). …

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet, supra, at 759. The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” App. 3781–3787. While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs—such as “You’re Going to Hell” and “God Hates You”—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke tobroader public issues.

Apart from the content of Westboro’s signs, Snyder contends that the “context” of the speech—its connection with his son’s funeral—makes the speech a matter of private rather than public concern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society. Its speech is “fairly characterized as constituting speech on a matter of public concern,” Connick, 461 U. S., at 146, and the funeral setting does not alter that conclusion.

This seems to be an eye-of-the-beholder issue. Regardless of the nature of the intrusion into the private funerals of those who died in military service to this country, it’s clear that the Phelps cult believes that its protest is on public policy. The protests rage against the tolerance shown to gays in American society and in American public policy, and warn that God continues to punish us for it. They protest at funerals because their diseased political stance is that God kills our soldiers because of our tolerance for sin.

Alito is passionate in his dissent:

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such anincalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree. …

First—and most important—the Court finds that “the overall thrust and dominant theme of [their] demonstration spoke to” broad public issues. Ante, at 8. As I have attempted to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central importance. But in any event, I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently.

Second, the Court suggests that respondents’ personal attack on Matthew Snyder is entitled to First Amendment protection because it was not motivated by a private grudge, see ante, at 9, but I see no basis for the strange distinction that the Court appears to draw. Respondents’ motivation—“to increase publicity for its views,” ibid.—did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern. Nor did their publicity-seeking motivation soften the sting of their attack. And as far as culpability is concerned, one might well think that wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.

Third, the Court finds it significant that respondents’ protest occurred on a public street, but this fact alone should not be enough to preclude IIED liability. To be sure, statements made on a public street may be less likely to satisfy the elements of the IIED tort than statements made on private property, but there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability. If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks—and the Court does not hold otherwise—then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had “the right to be where [he was].” See ante, at 11. And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.

Be sure to read it all; Alito makes as good a case as I’ve seen for allowing the $5 million judgment to stand.

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That photo with the headline is disgusting, particularly the “God Hates You” sign. It is inconceivable that a group can call itself a church and contenance such blasphemy. If anybody has a slander case against them, it’s every Baptist on the planet. You are right, Ed, it is nothing but a cult. I wouldn’t be surprised, or saddened, to read of their lifeless bodies being found in a building somewhere, laid out and wearing matching running shoes and sweats. The mother ship is waiting, guys. Better hurry….meter’s running…driver’s getting impatient.

Be sure to read it all; Alito makes as good a case as I’ve seen for allowing the $5 million judgment to stand.

Alito’s dissent was not his finest work, though I forgive him for it because of how awful the Westboro people are. You can subject speech to “time, place, and manner restrictions”, but the Court found the Westboro people complied with such reasonable restrictions because they were 1,000 feet away from the funeral, complied with all law enforcement directives, and did not disrupt the funeral. That’s pretty much game-over under existing First Amendment doctrine, and the Supreme Court so held 8-1.

The attempt to characterize the picketing as being on a matter of “private concern” is attractive on some level, but I don’t like it. Yes, Westboro singles out individual funerals, and yes, Westboro “personalizes” their picketing. So, I understand the appeal of saying “this picket is a personal attack on X soldier and his family and not a matter of public concern.” But it’s pretty clear that Westboro has a strategy of using servicemember deaths as anecdotes to drive their larger “God Hates Fags” message. It’s awful, but the effect of banning the practice is to limit the use of anecdotes in political discourse–and that’s a very, very dangerous precedent to set.

Satanic Leftists do some truly despicable things in this world, but Fred Phelps offers new lows, even for Democrats.

Terp Mole on March 2, 2011 at 11:11 AM

Asserting that Phelps is a leftists seems just a little bit iffy. He supported Gore strictly on the basis that Gore would not support a platform of homosexual rights as his own candidate. But even that support for Gore was erratic at best.

No one has a “right” to bury their relatives “in peace”. It’s common decency for that to be allowed to happen, but it’s not a “right”.

ButterflyDragon on March 2, 2011 at 1:09 PM

The problem is that Alito’s opinion basically suggests that because Westboro was targeting a particular funeral to make pronouncements against tolerance for homosexuals, that Westboro’s speech was on a matter of “private concern” that was entitled to lesser First Amendment protection. But as even Alito’s dissent made clear, Westboro uses individual servicemember deaths as anecdotes and as publicity drivers for a broader message (odious though it is). If Alito’s opinion had carried the day, it would have limited first amendment protection for political speech anytime that speech contained an anecdote. And, as we all know, political speech is FULL of anecdotes.

Just FYI these soul-sucking pieces of trash don’t just “protest” at military funerals.

They also do the same at funerals/memorial ceremonies for those killed in unspeakable acts of violence. They planned to show up at the funerals of all 32 souls killed at Virginia Tech when a gunman rampaged through Norris Hall my sophomore year but a radio talk show host bought them off with air time.

However they HAVE shown up several times on or near the anniversary to spew their garbage. I remember last year I had just moved back here and was actually living in a hotel looking for work and saw them show up with their crap.

They were heavily outnumbered by local townspeople, students and alumni though that doesn’t take away from the pain they were inflicting.

I disagree. It is a form of speech, commonly referred to as “saying goodbye.” They also have the right to practice their religious rituals without being stalked and harassed. The unpopular speech in this case is that of the mourners. Finally, if this is about protesting policy, rather than deliberately stalking and intentionally inflicting harm on the mourners, then the Westboros would be waving their crap in front of the families–because everyone knows they are the real policymakers.

The Westboro slimebags are vile, evil, and every other permutation of those four letters.

But think about this. If anyone who wanted to could sue for mental distress over what YOU say when you’re expressing your religious or political convictions, do you think that latitude would go unabused?

Those who call Tea Partiers “teabaggers” would be the first to line up and sue Tea Party protesters. Nothing would more quickly shut down genuine freedom of speech and assembly than the prospect of being sued over them.

And every issue can be made personal, at least for the purposes of a lawsuit; the court system should not be spending its time deciding if a funeral is a personal issue but job security for a government worker may not be.

I urge Americans not to demand that the federal government shut the Westboro protests down on the basis of distressing speech. A government that can do that has too much power. I would, however, love to see any government — federal, state, or local — gig Westboro on one ordinance violation after another. I have to assume this has been thought of, and maybe their time will come. Meanwhile, the Patriot Guard Riders will continue to be an unplanned blessing out of all this.

That makes exactly one member of our highest court who has any common sense. The rest are too lost in legal abstraction, or worse, political correctness, to consider the weight of community standards, disturbing the peace, common decency, and the sanctity of laying a loved one to rest.

We’re Americans, and we have to be able to say and do whatever we want, whenever we want and wherever we want. The world has to adapt to our desires. It’s our birthright.

So, deliberately shouting “Fire!” in a crowded theater is OK when one knows there is no fire, because shouting itself harms no one. Otherwise, people in the theater could make it a personal issue and sue.

Let protesters protest…out of sight and earshot from military funerals. This is done all the time during political conventions–keeping protesters well away from the targets of their hatred.

As for loving to see any government selectively enforce the rules to gig an unpopular group…sounds like the cops in Madison.

Oh, give me break. The Westboro protesters are not going to prompt anything like the consequences of shouting “Fire!” in a crowded theater. False analogy.

Meanwhile, there need be nothing selective about enforcing rules on Westboro. That’s a strawman.

But the important point is actually the distinction between what government prohibits or directly controls, and what it allows people to be sued over. The issue at hand is a lawsuit filed by the Snyders. If one such lawsuit should prosper, a million will follow, and 98% of them will be filed by leftists against the right.

And you, personally, have every right to make someone ask the funeral home for that – once they show up. But what makes you think government should get involved in actively restricting anyone’s right to assemble and protest?

Ryan Anthony on March 2, 2011 at 12:02 PM

I don’t think the government should get involved with anything except what they’re constitutionally obligated to do. (made-up stuff hiding behind the commerce clause doesn’t count)

I agree (reluctantly) with the decision. I still have a hard time trying to understand how “God hates fags” isn’t considered hate speech. I’m having a harder time understanding how there is such a thing as “hate speech” either there should be freedom of speech (ugly and bigoted as it may be) or not.

That doesn’t mean it would be easy to control myself if I were burying my child and these a$$hats showed up.

And you, personally, have every right to make someone ask the funeral home for that – once they show up. But what makes you think government should get involved in actively restricting anyone’s right to assemble and protest?

Ryan Anthony on March 2, 2011 at 12:02 PM

I made the mistake of quoting one of those cretin’s signs in my reply, so since it might be a bit before it comes out of moderation, to breifly summerize:

I don’t want the govt. to do anything except what the Constitution demands of it.

I agree (reluctantly) with the decision, but then “hate speech” should be eliminated as a crime because nothing can be more hateful than what they are doing with full protection of the 1st Amend.

I’m no scholar and I have no legal training, but I have said this before: The most disgusting speech is the most vital speech to defend. NO form of speech should be criminalized or our hope of living as a free people is over. I am in favor of a “justified ass-kicking” law though. A society that has to justify what it says is a society that will think before it speaks.

I know that “justified ass-kicking” isn’t realistic and would lead to all kinds of abuse….but so does the first amendment.

NO form of speech should be criminalized or our hope of living as a free people is over.
Mord on March 2, 2011 at 3:22 PM

Not true. Speech that deliberately misleads in ways intended to cause harm needs to be punishable — as is speech that discloses secret information in such a way that it can be considered destruction of property (like pin numbers or passwords).

On one hand, free speech is permitted, but on the other hand, stalking and harassment are not; the court seems to be unwilling to consider that while first amendment rights have long been protected by the Constitution, harassment has long been criminalized by law.

Later he says:

So should that be the rule? I guess those union protesters can physically menace people so long as they’re chanting slogans as they do so.

The first amendment does not state that people have the right to threaten others with speech. Think quickly of Black Panthers peacefully standing at voting places with billy clubs. You have no right to threaten violence and claim free speech, and I believe Alito was making that distinction.

The first amendment also protects freedom of religion. But should Islamists have freedom to practice their religion inculding their view of jihad? A thousand times: NO!!! One person’s rights can never be used as justification for denying another person of their rights.

While I find the WBC to be offensive and vile, their antics are protected under the first Amendment. What is needed is for the rest of society to exercise their rights in response, let us SHUN these clowns.

The WBC members have no right to rent a motel room, eat in a diner, buy gas, or shop in any store. People have the right to refuse them service and should do so at every opportunity.

Let society turn it’s collective back on the WBC and show them what it mean to have crossed a line, that while their antics are Constitutionally protected, this actions have consequences.

Oh, give me break. The Westboro protesters are not going to prompt anything like the consequences of shouting “Fire!” in a crowded theater. False analogy.

No break given. You have no idea what their intentions were. Nor do you know how threatening they were.

But the important point is actually the distinction between what government prohibits or directly controls, and what it allows people to be sued over. The issue at hand is a lawsuit filed by the Snyders. If one such lawsuit should prosper, a million will follow, and 98% of them will be filed by leftists against the right.

Be careful what you ask for.

This is an excellent point, however. Yet it seems leftists are always using loud protests to cower dissenters (like Wisconson). While I agree they should be allowed to do this publicly, they should not be allowed to threaten private citizens. It is the job of the police to ensure that this does not happen.

If you read the opinion you discover the Phelps were over 1000 yards away from the plaintiffs when this occured. This makes the assertion that the Phelps were intruding on the private space of the Plaintiffs to inflict the distress much more tenuous. Roberts, writing for the majority, acknowledged that state imposed “buffer zone” would be permissible. The majority decision is clearly correct – to go the other way on these facts (a la Alito) would have opened a pandoras’ box of unintended consequences.

I’m trying to imagine what you’d have to do short of outright bribery to seat a jury that would convict anyone for stomping a mudhole in the Phelps crew at the scene of one of their protests. Frankly I’m surprised it doesn’t happen consistently.

Freedom means freedom for everyone. This is a good ruling and not unexpected at all.

If you don’t like the Phelps message then attend one of their protests and voice your opinion regarding them. I’ve been to two of their rallies here over the years and the turnout of those against Phelps is always large, creative, and funny.

Sure, my initial reaction to the Phelps is like everyone else’s… beat them to a pulp or kill them… that’s no good though, so just go along as a shield and support others to make sure these people know that they are despised.

Sarah tweeted on the ruling today… and she is still maintaining her weird interpretation about the First.

The right to free speech enumerated in the constitution only prevents the government from actively repressing free speech. The problem is that is not how it is used in today’s politically correct world. In today’s world, someone’s right to speech is based on whether it is offensive to some protected group, if it is, it is not free and not just free but can get you put in jail. On the other hand, if it is offensive to a non politically correct group, which means conservatives, whites in general or white men in particular, then not only is it free, but it is also aggressively protected with the force of law against anyone who would stand up against it, again with penalty of jail time.

The reality of the situation is that when people like Phelps’ group use fighting words as they do, they should automatically have their protection against basic assault denied and let the reality of life happen, which is he gets his nose bloody, a black eye and is sent on his way home. Instead, he is coddled with police escort and anyone who he directly offends enough to strike him is just another lawsuit lottery victory for him. When someone is burying their war dead, they are practicing their speech, speech which should be defended by the community.

I support the Supreme Courts decision, what I do not support is the way the law is layered such that Phelps’ group can hide behind it and use it exact money from the targets of their hate. Phelps should leave every funeral he disgraces with enough bumps and bruises to give him significant pause from doing this again.

Everyone says fight speech with speech, but the problem is that there is no speech to defend against what Phelps’ group does. What he talks about has nothing to do with the event or the people he chooses to target. What can you say back to him that will take away the grief he adds to already grieving families? Absolutely nothing.

As for the rejects who claim I must support eh SEIU thugs, there is a big difference between attacking someone because they are on the other side of a political argument and attacking someone who is purposefully antagonizing you with fighting words. The other issue is that SEIU is already authorized through the political system to do what it is doing. They are one of the politically correct protected groups that is allowed to use violence already with no risk of repercussions.

The rule of law works for me every time. Now that SCOTUS has re-affirmed freedom of speech, no matter how vile/offensive, when will they strike down hate-speech???

I’ll grant Westboro the right to spew their nonsense, as long as I get the right to spew whatever is on my heart in the public arena, even if my praying or invoking God/Jesus Christ offends ACLU/libtards/CAIR.

Right on. The Founding Fathers could never had conceived that freedom of speech would have devolved to our current state, for the simple reason that if you offend someone, you had best be prepared to choose your weapon in a duel or get a can of whoop-a$$. They didn’t think one would have to run to the courts to seek relief from someone offending you.

1) Speaker is conservative, it is hate speech, not protected.
2) Speaker is Proregressive, it is constructive, protected and encouraged. If required, many other types of activities are to be considered speech as well. Biting off fingers, pushing and shoving, death threats to political enemy’s children, arson, property theft, pretty much anything.
3) Speaker is Neutral party, Who is the target, proregressive means it is hate speech and not protected, anyone else and it is protected.

The issue at hand is a lawsuit filed by the Snyders. If one such lawsuit should prosper, a million will follow, and 98% of them will be filed by leftists against the right.

Be careful what you ask for.

J.E. Dyer on March 2, 2011 at 2:39 PM

Good point, but you have it backwards.
Fred Phelps was a lawyer first and always at least until he was barred, which is no easy feat. Most all his kids are lawyers as well, they run his law firm. The preacher thing is a loophole (remember lawyer) meant to inoculate him. Their scam is to provoke an assault then sue anybody and everybody, especially the municipality for not sufficiently protecting them while exercising their “rights”. The locals are always ready to kick Fred’s ass. He’s attacking one of “their boys” at his funeral for God’s sake. It’s a raw nerve. Predictably the respondents lawyers will throw money at them to cut their losses and be rid of them. Easy money for Fred. This is how they make their living. Fred Phelps is a two-bit extortionist litigator. This isn’t about free speech, or even gays for that matter. It’s about a parasitic fraud on the court system.
And Fred always has been a parasite.

And there are zoning laws for various reasons that do not conflict with commerce and religious rights.

While this cult would still be odious if they protested in another part of town or even several blocks away and out of earshot of the mourners or on another day or before congress or on TV, etc, then their free speech rights would be fitting.

But this was harassment, pure and simple. Our laws are to protect society from evil.

This reminds me of how our justice system bends over backwards to protect criminals who get out on blatant technicalities, only to murder or rape again.

Our country had the same free speech laws and laws protecting the innocent a hundred and two hundred years ago, yet the government officials had common sense and these things were not allowed to stand.

As despicable as the Westboro demons are, and as unfortunate as it is for the families involved, the SCOTUS decision is correct. The vile, disturbed, and un-Godly things said by these vermin is public speech, and as long as they don’t cross the line of assault, it is their right to be said vermin. The aim of the First Amendment was to prevent government from impeding inconvenient political speech. A separate question, one in which common sense has been entirely subdued, was whether one individual’s intentionally offensive speech aimed at another individual or group can be reasonably considered “fighting words”. One needn’t travel to far into our legal past to find assault cases dismissed without a trial because of the provocation of the plaintiff’s words.

It was once an understood thing that you chose your words carefully because you might be required to defend them with your life and limb. Where there is no danger of righteous retalition, there is no incentive to civility.

My larger question about this ruling, then, is whether the SCOTUS would likewise support my right to preach God’s love and redemption on a public street corner. My reading of the majority opinion here suggests that a clarification of application has happened, and any street-preacher impeded by law enforcement would be able to use this decision as a source of redress.

Does anyone think this ruling will be a blow to future hate speech/hate crimes legislation? The court voted overwhelmingly to support the concept of free speech vs the content of the speech. It would seem to me that the court will have to revisit this case down the road if and when “hate” based legislation is challenged.

This was about a CIVIL case that alleged the speech was injurious. And the court ruled that HIS injury did not outweigh the right to said speech in this instance. That doesn’t exactly rule out legislation to regulate this kind of speech. And it’s actually kind of a narrow ruling.